The Provisions Of Section 39 (1)

“Where:

(a)an employee suffers an injury resulting in an impairment; and

The compensable injury must have resulted in some level of impairment to the employee before any section 39 payment may be made.

Impairment is defined in the Act as:

“... the loss, the loss of the use of, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

There are varying degrees of impairment.  Again, remember that the intent of the Act is to generally assist the severely impaired.

(b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

Where no Return to Work Plan (RTWP) or assessment has been undertaken, section 39 benefits do not apply.  This Act prerequisite applies to all claims, including pre premium cases.

the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

As with other decisions made under the Act, Comcare is required, as the relevant authority, to make payments that are reasonable.

Section 39 (1) states that benefits are payable in relation to “the costs, payable by the employee...”.  This means that no benefits are payable where there would be no cost to the employee.

(c)any alteration of the employee's place of residence or place of work;

(d)any modifications of a vehicle or article used by the employee; or

(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

As distinct from surgical aids and appliances under section 16, these types of aids and appliances are used to assist the employee as aids to daily living, whether that be at work or in the home, and will generally be seen as specifically designed for the disabled.

being alterations, modifications or aids and appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.”

When making a decision about payment of any of the items listed in section 39 (1), regard must be had to the employee's level of impairment and how reasonable it is that he or she requires such items.

It is therefore essential to ensure the treating doctor and Case Manager (where applicable) are involved with any claims that are made.